Last year, we wrote extensively about photo ID laws and the Supreme Court’s decision
to strike a key section of the Voting Rights Act of 1965. Now, with
gubernatorial elections in New Jersey and Virginia, and the debt ceiling and healthcare debates
already shaping the 2014 midterms, we’re revisiting voting policies to
see which states have enacted tougher restrictions since the Supreme
Court ruling in June.Remind me – what is Section 5 of the Voting Rights Act?

Under the Voting Rights Act, states and localities
with a history of racial discrimination needed to get permission from
the federal government to enact any changes to their voting laws, in a
process called “preclearance.” As of June 2013, nine states,
mostly in the South – Alabama, Alaska, Arizona, Georgia, Louisiana,
Mississippi, South Carolina, Texas and Virginia – needed to get any new
voting laws pre-approved. Some counties and townships in California,
Florida, New York, North Carolina, South Dakota and Michigan were also
subject to preclearance.Section 5 first applied
to states that imposed literacy tests or other unfair devices, and had
low voter registration or turnout. Congress later expanded the law to
add jurisdictions with sizable minority populations and English-only
election materials.
States and localities could “bailout,”
or get off the preclearance list, after 10 years of elections without
any problems. Several smaller jurisdictions bailed out over the years,
including parts of Connecticut, Idaho, Maine, Massachusetts, Wyoming,
Hawaii, and Colorado.
Of course, some of the biggest voting law battles of the 2012 election were in states not covered by Section 5 at all, such as Pennsylvania and Ohio.What did the Supreme Court strike down in Shelby County v. Holder?
The Supreme Court decided, 5-4, that the preclearance formula was unconstitutional under the 10th
Amendment, which gives states the power to regulate elections. The
Court ruled that the coverage formula was “based on 40-year-old facts
having no logical relation to the present day.”
From the decision:

Cite as: 570 U. S. ____ (2013)
3
Syllabus
cial discrimination in voting" that had "infected the electoral process
in parts of our country for nearly a century," Katzenbach, 383 U. S.,
at 308. At the time, the coverage formula--the means of linking the
exercise of the unprecedented authority with the problem that warranted

it--made sense. The Act was limited to areas where Congress
found "evidence of actual voting discrimination," and the covered

jurisdictions shared two characteristics: "the use of tests and devices
for voter registration, and a voting rate in the 1964 presidential

election at least 12 points below the national average." Id., at 330. The
Court explained that "[t]ests and devices are relevant to voting

discrimination because of their long history as a tool for perpetrating
the evil; a low voting rate is pertinent for the obvious reason that
widespread disenfranchisement must inevitably affect the number of
actual voters." Ibid. The Court therefore concluded that "the coverage

formula [was] rational in both practice and theory." Ibid.
Pp. 12-13.
(3) Nearly 50 years later, things have changed dramatically.
Largely because of the Voting Rights Act, "[v]oter turnout and

registration rates" in covered jurisdictions "now approach parity.

Blatantly discriminatory evasions of federal decrees are rare. And minority
candidates hold office at unprecedented levels." Northwest Austin,
supra, at 202. The tests and devices that blocked ballot access have
been forbidden nationwide for over 40 years. Yet the Act has not
eased ?5's restrictions or narrowed the scope of ?4's coverage formula
along the way. Instead those extraordinary and unprecedented features have

been reauthorized as if nothing has changed, and they
have grown even stronger. Because ?5 applies only to those jurisdictions

singled out by ?4, the Court turns to consider that provision.
Pp. 13-17.
(b) Section 4's formula is unconstitutional in light of current conditions.

Pp. 17-25.
(1) In 1966, the coverage formula was "rational in both practice
and theory." Katzenbach, supra, at 330. It looked to cause

and tailored the remedy (preclearance) to those jurisdictions exhibiting both.
By 2009, however, the "coverage formula raise[d] serious constitutional questions."

Northwest Austin, supra, at 204. Coverage today
is based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter registration and

turnout in the 1960s and early 1970s. But such tests have
been banned for over 40 years. And voter registration and turnout
numbers in covered States have risen dramatically. In 1965, the
States could be divided into those with a recent history of voting tests
and low voter registration and turnout and those without those char-

One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act – the part of the law that describes how preclearance works – intact. Instead, the Court struck down Section 4, which explains which
states and localities are subject to preclearance. If Congress amends
Section 4, the Justice Department can start enforcing Section 5 again.Why does this matter?

Are you registered to vote? Virginia has purged 38,000 voters, and Kansas has suspended registration for 17,500.

While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.
The Supreme Court’s June 2013 decision also effectively shifted the
burden from states to citizens. Before, a state subject to preclearance
had to demonstrate that a new voting law was not discriminatory and let
voting law experts in the Justice Department evaluate it before it could
be implemented. Now it is up to voters to challenge voting laws by
filing lawsuits under Section 2 of the Voting Rights Act, which prohibits racial discrimination.

But most court cases involving Section 2 have been limited to
redistricting, not other controversial voting measures, says Yale
University law professor Heather Gerken.
“With redistricting, there’s always one very wealthy political party
or another who can hire some very good lawyers and go into court and
challenge it,” Gerken said. “But a lot of the types of things that were
challenged under Section 5 were smaller questions, like, ‘Can you change
a polling place? Can you shut down early voting hours in ways that
might affect the black community?’ There are things smaller than
redistricting that can fall through the cracks.”What have preclearance states done since the Supreme Court ruling? a NORTH CAROLINA: Two months after the Supreme Court decision, North Carolina passed a number of measures,
including strict new photo ID requirements. The law also eliminates
same-day voter registration, shortens the early voting period by seven
days, and specifies that ballots cast at the wrong polling station will
be thrown out. Some changes will be phased in starting in 2014, and the photo ID provision goes into effect in 2016.
The North Carolina NAACP and a civil rights group called the Advancement Project have filed a lawsuit challenging the changes. The Justice Department also filed a suit of its own. But the suits venture into some new legal territory.
“What North Carolina did was definitely at the extreme of practices
in this country,” Gerken said. “So if anything is vulnerable to a suit,
it’s likely to be the North Carolina law. But again, the case law was
built around redistricting cases. It wasn’t built around this kind of
work.”q TEXAS: Last year, a federal court rejected Texas’ voter ID law, calling it “the most stringent in the country.” The panel also rejected the state’s redistricting maps, finding that they protected white incumbents while altering districts with minority incumbents.
But on the very day of the Supreme Court ruling, Texas Attorney General Greg Abbott said the state would “immediately” enact both measures.
The photo ID law requires voters to present an approved form of photo identification, where before they could present mail, utility bills or other proof of voter registration. The Justice Department had refused to approve the law based
on the state’s findings that Hispanic registered voters were far less
likely to have the approved photo IDs. The new law also requires the
photo ID presented on voting day to match the state’s voter rolls — complicating voting for some married women and others with name changes.
The Justice Department has filed a lawsuit against the newly enacted photo ID requirements and joined an ongoing lawsuit against the disputed redistricting maps.I FLORIDA: After the Supreme Court ruling, Florida resumed its plans
to remove non-citizens from its voter rolls using the federal SAVE
(Systematic Alien Verification for Entitlements) database. The Department of Homeland Security database helps government agencies check the immigration statuses of people applying for government benefits like drivers’ licenses, housing assistance, or Medicaid.
But opponents of Florida’s measure say that SAVE data is faulty and
not meant for elections, and that using the database to verify voter
rolls will disenfranchise eligible voters. (Colorado legislators rejected a bill to purge rolls based on SAVE data for this very reason, but that didn’t stop Secretary of State Scott Gessler from moving ahead with the plan.) The Miami Herald found that Florida voters flagged for verification were disproportionately Hispanic, and most turned out to be citizens. The Department of Justice has also said that SAVE is not meant to be “a comprehensive and definitive listing of U.S. citizens,” especially since it doesn’t include data about people born in the United States.
A nonprofit group has challenged the law,
but a federal court dismissed the lawsuit after the Supreme Court ruled
that Florida was no longer subject to preclearance. Another group has appealed a similar case to the 11th Circuit.s VIRGINIA: Virginia passed a number of voting laws this spring that seem likely to go into effect in wake of the Supreme Court ruling.
The Virginia legislature passed a photo ID law last year (which the Justice Department approved), but the more recent measure
goes further to limit what kinds of voter identification are
acceptable. Voters can no longer show utility bills, bank statements,
government checks or paychecks before they vote, but they can get an ID for freeif they don’t already have one.
The new laws also require the Virginia State Board of Elections to
remove ineligible voters by comparing state voter rolls with the SAVE database and other states.The Democratic Party of Virginia has sued the state
over the interstate crosschecks, contending that the database has
erroneous information and the law will disenfranchise poor, elderly and
minority voters, but a federal judge rejected the suit for lack of evidence. As of Oct. 17, the Board of Elections had already purged more than 38,000 voters.n SOUTH CAROLINA: In October 2012, a federal court blocked
the implementation of South Carolina’s photo ID law until 2013. The
court found that although the law was not discriminatory, there was not
enough time to implement changes before the 2012 election. South
Carolina Attorney General Alan Wilson said
the Supreme Court ruling now allows states to “implement reasonable
election reforms, such as voter ID laws similar to South Carolina’s.”Y MISSISSIPI: Secretary
of State Delbert Hosemann said Mississippi will enact a strict photo ID
law by 2014. The state says it will provide free transportation to
government offices where voters will be able to obtain free photo IDs.B ALABAMA: Secretary of State Beth Chapman said Alabama would also enact changes to its photo ID law by 2014.
Like Virginia, Alabama used to accept other kinds of non-photo
identification, such as utility bills and Social Security cards. But the
new law requires voters to present photo IDs (the state will also
provide free voter IDs to those who don’t have them). Legislators passed
the measure in 2011, but Alabama stalled in submitting the law for preclearance.D ARIZONA: The Supreme Court issued another significant ruling on voting laws this summer: In Arizona et al. v Intertribal Council of Arizona, Inc. et al., the Court ruled that Arizona, formerly a preclearance state, could not unilaterally require voters to show proof of citizenship
before registering to vote in a federal election. But the Court said
Arizona could sue the Election Assistance Commission to get the federal
voter registration form amended to require proof of citizenship. Now,
both Arizona and Kansas have sued the commission.
In case their legal challenges are unsuccessful, the states are setting up two-tiered systems of voter registration,
requiring proof of citizenship for state and local races but not
federal ones. So far, Kansas has suspended registration for about 17,500 voters until those they submit proof of citizenship.o SOUTH DAKOTA: Four Directions Inc., a Native American voting rights group, has asked the Justice Department to investigate why Secretary of State Jason Grant has so far refused to use federal money to fund satellite voting centers for registration and early voting on some Native American reservations.What about non-preclearance states?
The 35 states that were not subject to any kind of preclearance were
unaffected by the Supreme Court decision. But several of those states
have also moved to tighten voting rules this year.C ARKANSAS: This spring, Republican legislators overrode the governor’s veto to pass a law
requiring voters to show photo IDs. If voters don’t have them, they can
cast provisional ballots and return with IDs by the Monday after the
election. The state will also provide free IDs to people who do not
already have them.L IOWA: In late March, Iowa implemented an administrative rule allowing Secretary of State Matt Schultz to begin a voter roll purge using the SAVE database. Activists have sued Schultz in an attempt to stop the purge.O INDIANA: In May, Indiana enacted a law
requiring officials to check voter rolls for individuals registered to
vote in other states. The advocacy group Project Vote worries that the
measure could lead to voter purges.Z MONTANA: After Democratic Gov. Steve Bullock vetoed a measure that would have eliminated same-day voter registration, the legislature decided to let the people decide.
In 2014, Montana citizens will vote in a referendum on whether to keep
same-day registration. Backers of the measure say it will cut down on lines at the polls.c NEBRASKA: This spring, Nebraska shortened early voting by 10 days. Voters will still be able to vote in the 25 days leading up to an election.b NORTH DAKOTA: North Dakota is the only state without voter registration. In April, the state strengthened its voter ID law to no longer allow people without photo ID to vote by affidavit.p TENNESSEE: This spring, Tennessee passed a bill restricting the kinds of IDs that can be used to vote. Previously, voters could show student IDs, out-of-state IDs, library cards,
or any other IDs issued by counties or municipalities. Now only photo
IDs issued by the state of Tennessee or the federal government are
acceptable. The Green Party of Tennessee has sued the state over the law.So, where does all of this leave the Voting Rights Act?
The Supreme Court left it up to Congress to write new preclearance
criteria. In a July hearing, House Republicans showed little interest in
rewriting Section 4. But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., says there’s actually quiet Republican support for the issue. Rep. Jim Sensenbrenner, R-Wis., made headlines when he publicly supported restoring the law.
“There is at least one Republican, and you’ll find out in the future a
lot more, that is committing to putting life in this most important
civil rights act that got a stab in the back from the Supreme Court,” Sensenbrenner said.
Gerken, the law professor, isn’t optimistic that Congress will come
up with a new Section 4 formula. But she said there are other actions
Congress could take. For example, she has advocated that Congress adopt
an “opt-in” approach
and allow civil rights groups to file simple complaints for the Justice
Department to investigate. Then the agency could halt the
implementation of discriminatory laws as necessary.
Yale law professor Travis Crum has also suggested a “bail-in” measure,
by which Congress could instead strengthen Section 3 of the Voting
Rights Act, letting courts put states under preclearance if their voting
laws violate the 14th or 15th amendments.
As part of the Justice Department’s lawsuits against Texas and North Carolina, the federal agency has asked the courts to put those states back under preclearance.This post will be kept up-to-date. Has your state or local government restricted voting rights since June 2013? Tweet at me, email me at kara.brandeisky@propublica.orgor leave a comment below.

MAP METHODOLOGY: This map tracks
state voting laws before and after Shelby County v. Holder on four key
issues: photo ID, early voting, same-day registration and voter roll
purging. States with the most restrictive voting measures involving
these four issues are the darkest; each state earned one point per
restrictive policy. So a state with restrictive policies in all four
areas would have a score of four and appear the darkest. The “before”
map reflects policies in place on June 24, 2013, the day before the
Shelby County v. Holder ruling. The “after” map reflects policies in
place as of Oct. 31, 2013, even if the changes are pending
implementation. Details on scoring per issue follow.

Photo ID: States received a point if they will
require photo ID in upcoming elections (even 2014 or 2016) as of Oct.
31, 2013. States that require ID but also accept non-photo IDs, such as
paychecks or utility bills, didn’t receive a point. Likewise, states
that have passed photo ID legislation but have been unable to enact the
law because of a court order (such as Wisconsin and Pennsylvania),
didn’t get a point.Early voting: States received a point if they don’t
allow in-person voting before Election Day, or require an excuse for
absentee early voting. States that have shortened early voting didn’t
get a point as long as they still allow some early voting.Same-day registration: States received a point if they don’t allow registration on Election Day.Voter roll purging: States received a point if they
have asked for access to, or support using, the Systematic Alien
Verification for Entitlements (SAVE)database to maintain state voter
rolls. Not all states that have requested access have actively begun
purging voter rolls.